July 27, 2014

On Tolerance

-by Sebastian

In light of Hobby Lobby and the surprising and welcome storming of the gates by gay marriage advocates in recent years, there seems to be quite a bit of talk about the virtue of tolerance. I'm not philosophically trained but much of it seems confused. The proximate causes of this post are this post by John Holbo and this post by Damon Linker. Both seem to be confused about the nature of the civic virtue of tolerance.

Tolerance has at least two facets of civic importance. First it lets people of somewhat differing moral values live together in peace. Second it fosters a humility about one's own beliefs that can be very useful if it turns out that some of those beliefs are wrong.

Tolerance has been fostered in Western societies in a few ways that I can identify, though I'd be happy to see more examples. First, we allow each other 'wrong' beliefs. This seems obvious, but in much of human history ostracism or forced re-education were the norm. Second, we allowed for a private and public sphere with differing levels of tolerance in each. This seems to have been undermined by drastically shrinking what counts as private dealings. Third we launder responsibility for violations of private moral judgments through the democratic allocation of taxing and spending functions of the government. So you may personally disagree with methadone treatment for opium, but as a society we've decided to do it. Your tax dollars will go toward it, but we won't force you to personally give methadone to patients if you disagree with it.

Linker's piece is a mess because he attacks the issue through the lens of intolerance as a form of bigotry. This obscures the methods and purposes of civic tolerance. Holbo's response is difficult because it treats all forms of democratic government action as equal in terms of their tolerance effects.

This is a essentially thinking aloud, but there are key differences between the government allowing something (not making it illegal), promoting it (usually by paying for it with tax dollars), and madating it (making citizens subject to penalties for not going along). Permitting something can allow for tolerance. Promoting it makes tolerance harder but not impossible. Mandating it makes tolerance tough.

By way of example, take the death penalty. The US federal government allows it. Certain state governments use tax dollars to engage in the death penalty. This is a source of contention for those who are against the death penalty and who then try to change the law. No one however is personally required to execute prisoners in violation of their moral normas (whether religiously derived or not). No US government body will take a doctor and force him to execute a prisoner. We tolerate dissent of the death penalty enough to allow people who disagree with it to avoid personally engaging in it. This is a good thing, and allows the political process to continue.

Part of the conservative pushback on 'toleration' is mere rhetoric to complain about losing the political contest on such issues. The gay marriage issue is such a case. No one is proposing that conservatives be involuntarily forced into a gay marriage. The government isn't particularly supporting gay marriage--there are a few tax breaks and a number of shortcuts through medical and estate planning. Many people don't like the idea of gay marriage, enough people do that it gets through in many places, and thats the political process for you. The virtue of tolerance comes in because you don't have to have a gay marriage yourself, nor associate with people who do (if you're an asshole--which lots of people are).

But some of the conservative pushback on toleration is well founded, and this is in the areas where the government goes beyond permitting or supporting, and into mandating. This is especially tricky as we approach the problem of services. The current progressive approach is to treat services exactly as we might treats goods (which is a bit ironic considering that many progressives would rail against the idea that workers are interchangeable widgets). The civic value of toleration suggests that whenever feasible we shouldn't force people to personally engage in a violation of their morals. We shouldn't force someone who is against the death penalty to kill a prisoner. We shouldn't force a doctor who opposes abortion to engage in a medically unnecessary abortion, or in a medically necessary abortion where another doctor is available without harm to the patient. Further we realize that entering the stream of commerce doesn't throw toleration to the wayside. If your housemaid strongly is against adultery, she should be able to quit if she finds evidence that you're cheating. Similarly a wedding planner should be able to quit if she finds out that your wedding involves two men. Hiring services isn't the same as selling groceries. There isn't any obvious reason why we should treat them identically. If you are a writer, and strongly support gay rights, you should be able to refuse a commission to write a reparative therapy tract.

We begin to get into serious problems when the government starts to mandate things instead of providing them. It sounds stupid to me, but it turns out that contraception is a hotly contested political issue. If enough people like me win in Congress, and we want to provide contraception, we should vote to spend tax dollars to do so. That allows tolerance for people who disagree, but lost in the political process. What we should not do is force people who (admittedly seem to me to have silly views) don't like contraception to actively engage in providing it. If enough people think the death penalty is a fair and good idea, the state should still not force pro-life doctors to kill criminals. What the current debate on tolerance seems to be missing is the idea that people seem to respond differently to having tax money allocated to things they don't like than they do when they are forced to engage more directly in things they think are morally wrong.

Comments

The distinctions you make are nice in principle, tricky in practice. Many of us who were drafted Back In The Day felt that the US government *was* making us executioners, though as one drill sergeant explained: "The US Army doesn't make you shoot at other people. What the Army does is give you a rifle and plunk you down in the boonies where other people are shooting at you. After that it's your decision."

In more mundane and contemporary terms the idea that, say, Hobby Lobby is "engaging directly in things they think are morally wrong" by allowing their employees' health benefits to be used for contraception but NOT by investing in companies that produce contraceptives is one that doesn't pass the "smell" test, IMHO. It is reminiscent of the sputterings of kids "You can't tell me what to do! You're not the boss of me!!" and has about as much intellectual rigor.

I'd be happy to see you - or anyone else - parse these distinctions in a way that does NOT give a free pass to bigots. I'm serious. I'd actually like to see it, but I'm not holding my breath until I do.

Hobby Lobby are frauds, plain and simple. before Obama, they provided coverage for the exact same birth control items that they now claim are abortifacients. they changed their mind about the philosophical and religious implications of those items when it because mandatory to cover them? B.S.. the whole thing was political.

the wedding planner complaint is the tricky one. it's all about how private a 'private' business really is. IMO, it's not quite as private as those wishing to publicly discriminate wish it was. and, while those who wish to discriminate might feel it's a great loss of liberty to be forbidden to do so, they probably think it's just great that nobody discriminates against them. and they probably don't give a second's thought to the fact that the same laws which prevent them from discriminating against others are also stopping others from discriminating against them. yes, it might feel icky to the self-righteous discriminator to have to serve the unclean and unworthy, but that's the price a bigot has to pay so that someone doesn't refuse to serve bigots.

If your housemaid strongly is against adultery, she should be able to quit if she finds evidence that you're cheating. Similarly a wedding planner should be able to quit if she finds out that your wedding involves two men.

Well, I dunno'. Consider the reverse. If we force the housemaid to stay on, it is slavery. "Forcing" people to take pictures of gay wedded bliss hardly qualifies as such.

What we should not do is force people who (admittedly seem to me to have silly views) don't like contraception to actively engage in providing it.

And, just as we don't force doctors who disagree with it to personally administer death penalty drugs, we don't force businessmen who object to it to personally provide contraceptives. What we do is require that they provide insurance for their workers which includes them.

Nobody is forcing the owners of Hobby Lobby to personally provide contraceptives that they disapprove of. They are (or at least were) just being forced to tolerate the fact that their employees can get them elsewhere.

Morally, there is no difference between having to pay for (private) health insurance which includes contraceptives and being required to pay taxes which provide (government) health insurance which includes them. Think, for example, of Medicaid -- which the Hobby Lobby owners are forced to pay taxes to pay for, and which includes all the stuff that they object to.

Either way, you are not being forced to do something. But you are being forced to pay for it being done.

yes, it might feel icky to the self-righteous discriminator to have to serve the unclean and unworthy, but that's the price a bigot has to pay so that someone doesn't refuse to serve bigots.

Certainly. Bigots are trying to claim the mantle of victimhood without actually being victims. When bigots become a protected class, I will take such arguments seriously. Until such time comes, these types of claims are essentially unserious.

Whatever should be the limits of a businessperson's right to refuse to do business, the "goods" v. "services" distinction doesn't help much. Providing transport or lodging sure looks like a "service" to me, even with the goods in the mini-bar. If there is a distinction between an SSM-to-be couple asking for a custom wedding cake, a standard wedding cake, a tray of cannolis already in the display case, or a fresh batch, does calling one a good and another a service help figure out what we should make the baker sell? How about passport photos v. wedding photos? Or photocopying of material you don't like?
There is a rough agreement that certain kinds of business relationships involve a kind of close personal relationship -- neither lawyers, ghostwriters, nor hookers have to take every potential client who is solvent and sanitary -- and shouldn't be compelled. Some cases are closer than others. We'll be hashing this out for some time, and some of it is genuinely hard.

This is a call to pass Single Payer health care next term, yeah? If so I thoroughly agree.

Dan Savage claimed businesses are perfectly free to refuse service if they announce it publicly or post a notice saying so, but that businesses don't want to publicly announce a policy of refusing LBGT because they'd lose a huge number of customers over it - they just want to refuse service on the qt to individual LBGT people.

Businesses over N1 employees pay a Federal Head Count tax of $N2 per employee; businesses that provide insurance coverage with contraceptive coverage are exempt. Businesses that do not provide any insurance, or don't include contraceptive coverage pay the tax. Employees who don't receive coverage can take an individual contraceptive tax credit on their Federal return. So much for a "mandate". Just jiggering with where in the machinery the epicycles are attached so that those with the need can claim they're on the right side of Satan, or whoever.

As for the beleaguered wedding cake maker, are they similarly off the hook if the would-be customers were a white woman and a black man? Or a black woman and a black man? All fine and dandy if they just put a "whites only, because Jesus" sign in the front window?

I think there is a bit of a muddle in this post about what constitutes forcing a person to participate in something they consider morally undesirable.

The gay marriage parallel to the person who doesn't want to execute a prisoner is the priest who doesn't want to preside over the wedding, not the wedding planner or the baker.

I think the place to start is to look at the common law tradition of requiring public accommodations to serve all comers who 1) behave reasonably and 2) pay. That, I think, has its origin in ancient customs of guest friendship, but I'd like to see a detailed discussion and/or analysis of it.

The issue he raises is one out of about 100 issues that are caught up in this particular case.

There are actually remedies available to the Greens and people like the Greens who don't want to be subject to onerous regulation about how they run their business. Most or all of those remedies involve giving up some of the advantages that come with the particular corporate form they employ to make the quite important distinction between themselves, as natural human persons, and the entity known under law as Hobby Lobby.

The SCOTUS solution in this case was to further erode that distinction, and to find a religious conscience in an entity that has no natural existence whatsoever, and which was created for purposes specifically other than religious practice and expression. That is going to end up biting a number of @sses.

And, the exemption granted to the Greens is one that happens to be congenial to the specific individuals on the SCOTUS who voted in favor of it. I will put on my prognosticator's cap and say similar exemptions will not be extended to people and communities whose beliefs do not align quite so closely with those of the men in black.

And that is, precisely, an establishment of religion.

It was a stupid, ill-considered decision, that clarified nothing, and that will cost the nation millions of dollars and billable attorney hours to sort out. It is going to breed trouble for another generation. The claims of the authors of the majority opinions, that this was a strictly narrow decision with no implications beyond the case at hand, are either bizarrely naive or disingenuous, have no logical basis, and have already been demonstrated to be wrong.

Tolerance has been fostered in Western societies in a few ways that I can identify, though I'd be happy to see more examples.

I don't think that tolerance is what is at issue here. Tolerance is an individual quality, so it is, as you say ,'fostered' in individuals. But what allows this to happen is imo a social consensus on what is and is not appropriate behavior.

That we live in a time where we accept a wider variation in almost everything often has people forget, or at least elide, the role of a social consensus. And given that the social consensus changes more and more quickly, it is easy to get tripped up by it. In addition, because the consensus changes more quickly, the ways that they (and in an earlier time, it would have been 'it') are enforced are not set so it's easy to see why people argue over how and how much someone should be punished or even whether someone should be or not.

Another thing is that everything about the world now allows various situations to be brought out of their contexts and plopped into other contexts. This makes it even more fuzzier to actually discern what the social consensus on things are.

Seb, if you have the time, I'd be interested if you could expand on this a bit:

Second, we allowed for a private and public sphere with differing levels of tolerance in each. This seems to have been undermined by drastically shrinking what counts as private dealings. Third we launder responsibility for violations of private moral judgments through the democratic allocation of taxing and spending functions of the government.

Can you explain what you have in mind when you refer to the "drastic shrinking" of private dealings?

And how is laundering responsibility for violations of private moral judgements via the tax code different than via regulations on corporate governance and practice?

I take your general point, I'm just not seeing a crisp distinction between the two.

I don't think that tolerance is what is at issue here. Tolerance is an individual quality, so it is, as you say ,'fostered' in individuals. But what allows this to happen is imo a social consensus on what is and is not appropriate behavior.

What that comes down to is the social concensus on how much variation is tolerable. Or, if you prefer, where the red lines are.

I'm not sure how rapidly that concensus actually moves. We do have the case of public opinion on homosexuality, where change has been extremely rapid. (Change over just a decade or two being "extremely rapid.")

But the key point there is that change on that one issue has been "extremely" rapid -- far more rapid than the concensus on any other subject I can recall. Most others have been more a matter of generations. That is, it was a matter of those with one opinion dying off and being replaced by those with another.

The other thing that has changed in the last half century or so, I would say, is how far we are willing to go to enforce the social concensus. We see the rare, but high profile, physical attacks on gays; which are not held to be acceptable my majorities anywhere. But we no longer see the kind of widespread violence that the mid-20th century saw on "uppity" blacks; which was considered socially acceptable in broad swaths of the country.

Hmmm, I don't know. The social consensus on sex and what can be shown/expressed/hinted at seems to have changed rapidly. Interracial boundaries have been moving pretty quickly (I too think a decade or two is actually pretty fast) And when they move quickly, you end up with small pockets of folks who really really object to it and then, presumably because they lack the ability to sense what the consensus is, act out, thinking that they are protected.

Trivial examples such as fashion and music also point to the boundary of the possible seems to have expanded. The idea that you can find your niche and do well enough also points to that expansion of social consensus.

What I'm thinking (or at least think I am thinking) is that tolerance does not get at what the problem is. Just because one social consensus replaces another one does not automatically mean that people are more 'tolerant'. On my facebook feed, perhaps from Gary, was a run down of some Atheist who was basically cranking up the misogyny rhetoric well past 11 that was pretty depressing.

I guess there is a certain cynicism involved on my part, because on one level, Western societies are more 'tolerant', in that they allow more things to go on. But that seems like a very shallow sort of tolerance and not what I really associate with true tolerance, which has a turn the other cheek, help thy neighbor vibe that seems especially lacking on modern society. The word itself is kind of double edged, in that to 'tolerate' something or someone means you've got severe reservations but you are basically going to bite your tongue (The line is my wife and daughters tolerate my presence, as long as I don't wear out my welcome) But tolerance, in its modern societal garb is actually, at least when I hear it, supposed to be a really positive attribute. He really showed true tolerance seems to be acknowledging that someone else has just as much right to do something as you do.

"Tolerance" on an individual level is a different matter from "tolerance" on a economic-political-societal level.

The classic adage was "Your rights stop where mine start." The idea was that a person could believe whatever they wanted and do whatever they wanted - but only up to a point where their actions impinged on another person. That was considered to be the context in which a pluralistic society could function.

In that context, individual rights do not apply to non-individuals. The idea of giving religious rights to a corporation makes no sense in that context. The idea of giving specific religious beliefs the force of law makes no sense in that context.

(Parenthetically, the idea that we need religion in order to have laws against murder, assault, theft and so on is insane. Are these things wrong only because a religious text says so? What happens, then, when a religion decides those things are not wrong, as has happened throughout history?)

A pluralistic society is going to have citizens who subscribe to a wide variety of philosophies, many of them mutually contradictory. In order for all citizens to live together in some kind of peaceful amity, there has to be a limit to the scope of permissible action on specific beliefs, particularly when the entity doing the acting is a collective, and its actions affect people who don't believe in the same things the entity does.

If someone has a deeply held sincere belief in "X," they can hold that belief until the cows come home. However, they may not require anyone other than themselves act as if that belief were an immutable truth.

Society changes, and changes its laws, when enough people hold a belief to be true to act on it socially and politically.

If you think SSM is a sin, if you have a deeply held sincere belief that adulterers should be stoned to death, if you believe with all your heart and might that blastocysts and corporations are people and should have the same rights as people... then the law preserves your right to believe those things. That's tolerance.

But since not everyone shares those beliefs, and since acting on those beliefs interferes with other persons' rights, "tolerance" should not extend to enshrining those beliefs in law.

Just back from my weekly appointment for Nurse Rached's prescribed electro-shock therapy treatment in the basement of the lunatic asylum and the usual three-day recovery period restrained on a gurney with my dribble cup placed under my chin to spit out the now fried and useless synapses, in time to catch Sebastian's post, which I welcome for its effort (I miss your contributions, Sebastian, because they are always thoughtful, but too rare, and because McTX shouldn't have to wear the mantle of the "reasonable conservative" all by himself around here; yes, wj is a nominal conservative but too agreeable to be any real fun -- ha ha, that's a joke) to tweeze out the subtleties and nuances of the various issues before us.

But I don't think we live in a nuanced, 50 shades of grey political world any longer and I was trying to figure out if the article contained, wittingly or unwittingly, a bottom line explanation for why we are faced with the odd request (I'm now addressing the usual suspects, not Sebastian) by the intolerant to tolerate intolerance because the intolerant have feelings too, (we'll leave aside the fact that the intolerant have been tolerated in the public sphere by the tolerant -- or are these latter the intolerant? --- for going on centuries in the areas of race, Civil rights, women's rights -- including the issues of birth control, etc .. and the administering of healthcare) ... and ... while Dr. Ngo, Russell, and others have adequately addressed the low-hanging fruit ...

.... and, well this popped out at me ... " The virtue of tolerance comes in because you don't have to have a gay marriage yourself, nor associate with people who do (if you're an asshole--which lots of people are)."

... especially that final parenthetical.

Simply (and finally, geez sorry, I get wordy after my shock therapy) we are increasingly surrounded by intolerant, un-nuanced assholes in the public sphere who demand our tolerance for public displays (Uncle Crazy in the private sphere, spouting bullsh*t at the dinner table, we can ignore without peril) of their intolerance, not only in non-formal ways, but now in formal law, because somehow (well, the media and political consultants have made of fetish of parading the assholes before us) the assholes have enough heightened influence that they can get their fellow assholes installed in high places and even intimidate the few remaining non-assholes in their own Party.

Yes, my pet subject, it seems, but the gist can be applied to just about every issue across the board these days. Read the article and experience the bending over backwards toleration, by officaldom and the rest, of a f*cking asshole, who wants tolerance for his asshole public behavior, more egregious than Hobby Lobby's asshole behavior (there I go again being intolerant), given the latter's utter insincerity of their request for exemption under the law.

The sad thing is, it's not the assholes who are insane. It's us, for putting up with them (things would have been much more intolerant at that airport if I had been the one the guy's AR-15 was pointing at, and the universal insanity in this country is so brilliantly conceived by the assholes that it would have been MY intolerance for that guy's request for my tolerance, in the face of his uncivilized behavior, that would have been punished, despite my weapon of choice, a package of Skittles thrown at him. I would have been shot by him, I expect, AND arrested by deputized assholes for dealing with assholery the way it should be.

Now, take, Sarah Death Palin, please. The other day she was ticketed for speeding and, in a rare display of humor for an insentient being whose victimhood knows no bounds, she said, by way of explanation, that she wasn't speeding, she was qualifying for NASCAR.

Innocent, seemingly, but beware, because this little bon mot is percolating between her two braincells and I'll wager good money, that say, within several months, especially as we approach the election witching hour, she's going to get a movement going among her fellow intolerant victims that says. "You know, come to think of it, why can't we qualify for NASCAR via speed trials, while in public traffic on public roads. Who is the boss of us who says we can't? There's nothing in the Constitution that prevents an exception for our God-given right to drag race and maybe engage in harmless demolition derbies on roads built by money stolen from us by Obama and the government!"

The assholes have won. We're the ones who are crazy.

Anyway, good, thought-provoking post Sebastian and I hope there are more where that one came from.

Too bad your type of conservatism is not in the ascendancy because there is just no talking to the assholes who have won the day.

*OMG, a PS, too: This: "If enough people think the death penalty is a fair and good idea, the state should still not force pro-life doctors to kill criminals."

Although maybe we should. I worry much more about the doctors who like doing it. In fact, as the Death Penalty is further eliminated, I expect the doctors who oversee these matters and like doing it will attempt to carve out a legal exemption, which says that although the State may no longer execute the convicted, these special assholes may continue to do so in their own private abattoirs and why oh why can't the rest us tolerate such a thing.

I mean, already, executioners in a few States are buying the pharmaceuticals from dicey sources because the companies refuse to sell them questionable stuff any longer.

"There are actually remedies available to the Greens and people like the Greens who don't want to be subject to onerous regulation about how they run their business. Most or all of those remedies involve giving up some of the advantages that come with the particular corporate form they employ to make the quite important distinction between themselves, as natural human persons, and the entity known under law as Hobby Lobby."

The *Greens* are being forced to do nothing. *Hobby Lobby*, a separate (corporate) person is.

I you were wronged by Hobby Lobby, and sued the Greens, do you think that their lawyer would not immediately move to have your cases dismissed because the Greens themselves didn't do any harm?

The Greens chose that method of doing business, because it gives them advantages, net of the disadvantages. They then wanted to have one disadvantage arbitrarily removed, without losing any advantages.

Count, the case of the death penalty could be construed in the opposite direction. It's not about doctors forced to participate in executions even if they personally oppose the death penalty, in reality qualified doctors that are in favor cannot participate* because they would face adverse consequences. It would be a violation of the code of conduct and could cost them their licence for practicing medicine (the equivalent of getting debarred). So, a doctor could in theory sue for not being allowed to become part of the execution process (except at the receiveing end of course).

Can you explain what you have in mind when you refer to the "drastic shrinking" of private dealings?

I've been trying to write a semicoherent stream of thought getting to that point but have been failing.

And there is broad agreement, I think, that society (through the government) should have a role in public affairs and leave private dealings alone. So it becomes essential to define what is public and what is private.

I think there is a really simple line between public/private if the government is "public" and everything else is "private". But that's not a realistic line.

Corporations, for example, are public in some ways (their existence is regulated by the state) and private in others (corporate actions are led by the CEO/board/stockholders, and are not in general subject to popular will; they own property, etc).
Businesses are fall in the middle ground. I can write all the books I want. But if I wish to sell books to people, my actions are no longer private, they become public. Sort of. The public has no legal authority to force me to sell a particular kind of book, or to force me to keep selling books if I no longer wish to. In general, the business decisions I make in my book venture are not subject to public oversight or constraints. For example, if I am running an religious bookstore, I am not running afoul of the establishment clause, and I doubt a law banning the sale of specific books would be constitutional, even though I would of course be free to write and read those books in my home. But there is some legal authority to regulate the manner in which I sell books.

The limits of that legal authority in this public/private middle ground are poorly defined at this juncture, I feel.

My perception is also that this middle ground is becoming increasingly relevant, especially when compared to our founding. I think this stretches beyond "tolerance" to all aspects of our society. Corporate banks are tightly tied to the overall health of our economy. Personal data is increasingly held by corporate parties. etc.

As indicated above, this is all poorly defined in my mind and I apologize for the ramble. But I would be interested in hearing more discussion on the shifting public/private spheres.

But that seems like a very shallow sort of tolerance and not what I really associate with true tolerance, which has a turn the other cheek, help thy neighbor vibe that seems especially lacking on modern society.

Rubber, meet road. The very definitions are subject to the political process....a very public endeavor indeed. I feel an effort to "define" those terms and expect politics thenceforth to conform to those definitions is to embark on a bit of a fools errand.

As far as I can tell, anything corporations do falls under the heading of "public".

And, since corporations have no real agency of their own, what we're talking about is anything that people do under the aegis of the corporate form.

The corporate form *does not exist* outside of the public sphere. Activities that occur within that structure are not "private", in the sense of being beyond the reach of public regulation, and cannot be, because the structure itself is a creature of public law and regulation.

expect politics thenceforth to conform to those definitions is to embark on a bit of a fools errand.

Bobbyp, that's a good point. I'm not really trying to say that I should hash it out in my brain, then everybody else should accept my conclusion.

But I think one of the strengths of the US form of governance is that some aspects of the law are out of the easy reach of the political process. Or within varying degrees of reach of the political process.

Frex, the bill of rights has served as a check in some cases. Courts can nullify politically popular law if it contradicts higher laws like the bill of rights.

Of course, its not a perfect check on popular will, the constitution can be amended, but its a much harder, slower process.

As an aside, courts can also fail in their duty to uphold the higher law due to political and societal pressure.

Perhaps what I'm getting at is we have a reasonably good framework for defining the limits on how government, as a tool of popular will, can interact with natural persons. Frex, regardless of how unpopular religion X is, we can't ban legally its practice (in theory at least).

However, I think those limits are really poorly defined in the public/private middle ground of businesses, corporations, etc.

IANAL, but it seems that there are legal limits to what popularly passed laws can force corporations to do/not do. But these limits seem ad hoc, developed over time, half through political processes, half through judicial fiat.

Perhaps my perception, perhaps my poor understanding, but it doesn't seem like we have a good legal framework for what is outside the reach of the political process in that middle ground.

Again, none of this is well formed in my mind, so forgive me if I'm not making much sense.

Activities that occur within that structure are not "private", in the sense of being beyond the reach of public regulation, and cannot be, because the structure itself is a creature of public law and regulation.

While I appreciate the clarity of your views, I don't think its that simple. Perhaps it should be, but that would buck over a century of caselaw. And my point, at the moment, is not what should be. Just that our legal framework, both political and caselaw, seems to be confused on the issue.

While its true that corporations have a long history of receiving *certain* constitutional protections, religious liberty is particularly difficult because it isn't clear exactly how a corporation can even hold religious views. Even for a closely held corporation, the corporation is still a separate entity from the shareholders, and the presumption that you can just look to the religious views of the shareholders is trite- what if they disagree? What if halfway through the case the Hobby Lobby shareholders converted to Judaism? Does Hobby Lobby convert as well? What if half of them convert, but half of them don't? How does one divine the corporate entity's religious views from those entrails?

Even just following the Constitutional tradition of taking litigants at their word as to their religious views isn't satisfactory as it doesn't explain how a corporate attorney is to satisfy his ethical obligation to properly represent the religious values of his corporate client, and how he is to ensure that he isn't being used by the corporation's CEO to advance the CEO's views rather than the corporation's.

There is a long history of caselaw granting constitutional protections to corporations

Yes, I am very much aware of that.

That is a different question than whether something is in the public or private sphere.

The fact that decisions concerning corporate operations are made by their executives, rather than by taking a poll of what the public would like the company to do, does not take the corporation or those decisions out of the public arena.

Those decisions are subject to regulation, *because* they are being taken on behalf of an entity whose existence is a public, legal construction.

The recognition of certain civil rights in corporations does not remove them from the public sphere, or from the reach of public law and regulation. Not least because the recognition of those civil rights in corporations is itself an act of public law and regulation.

....some aspects of the law are out of the easy reach of the political process.

And this was a political decision that has favored conservatives throughout our history.

And also remember, the Aliens and Sedition Act was passed by THE FOUNDERS.

...but that would buck over a century of case law.

One could equally argue that line of law cases were egregiously wrongly decided. One only has to look into how states regulated corporate charters ca 1840 to get a differing take on this. Or, one may point out that current conservative jurisprudence could give a rats ass about precedent.

some aspects of the law are out of the easy reach of the political process.

The count askedYa mean, the law, like jazz, is just made up as we go along?

I was thinking of Charlie Parker's line "You don't play the sax. Let it play you." Of course, Parker died at the age of 34 and the coroner thought he was between 50 and 60, so there's that. In fact, it sounds a lot like the law.

The recognition of certain civil rights in corporations does not remove them from the public sphere, or from the reach of public law and regulation.

Ok, maybe. Depends on how you define public and private. I have heard both words used commonly to describe corporations.

The recognition of corporate personhood and the extension of rights to corporations does move them beyond political regulation in some extant. For example, First National Bank of Boston v. Bellotti limited the regulation that could be applied to a corporation.

It is, perhaps, useful to define corporations as strictly public. Common definitions are the foundation of any discussion. The strict definition of public/private doesn't effect my point that much.

The point is corporations (and other things), whether public, private, or in a middle ground, exist outside of a clear framework of legal rights and governmental limits. Instead, there is an adhoc application of natural person rights on a case by case basis, which is hardly ideal. At least in my view.

bobbyp:

And this was a political decision that has favored conservatives throughout our history.

Perhaps you would prefer direct democracy. I would not, as I believe it is not suitable for a country of 350 million. A discussion potentially worth having.

And also remember, the Aliens and Sedition Act was passed by THE FOUNDERS

True. And a valuable reminder of how far we've come. And likely how far we have left to go.

One could equally argue that line of law cases were egregiously wrongly decided.

Sure. One could argue that, and its an argument worth having (although one I probably don't have the time to commit to at the moment, and am thus trying to avoid).

Those cases being wrongly decided don't weaken the point I'm trying to make: we lack a consistent framework for how popular will can be applied to corporations or other businesses (whether they are 'public', 'private', or other).

This leads to a case by case application of natural person rights to corporations. Which I think is a messy system, more dependent on the temperament of the judges than anything else.

In my mind, not a good thing. And as you say, could readily lead to wrong decisions.

While I'm assuming we disagree on what is right or wrong in this regard, bobbyp, I view that as orthogonal to the point I'm trying to make (poorly, as it is ill defined in my mind).

We don't even have a legal reference point to start a discussion on what we disagree on, beyond a scattering of court cases. Which, to use your phrase, may be "egregiously wrongly decided". That's the problem I see, and is the point I'm trying to describe.

The recognition of corporate personhood and the extension of rights to corporations does move them beyond political regulation in some extant. For example, First National Bank of Boston v. Bellotti limited the regulation that could be applied to a corporation.

OK, I think I understand your point better. Thanks for clarifying.

Yes, the fact that certain rights are recognized in corporations means that certain kinds of regulation are off limits, to the degree that those regulations would be a violation of those rights.

The point I'm fumbling to articulate goes back to this:

And there is broad agreement, I think, that society (through the government) should have a role in public affairs and leave private dealings alone. So it becomes essential to define what is public and what is private.

I share your sense that, in most folks minds, it's legitimate for society acting through government to extend its reach to public matters - the res publica - but that it should generally leave private matters alone.

There is also a reasonable, well-recognized sense in which corporations and other forms of businesses are "private". Briefly, they are not owned or operated by the public, but by private individuals, acting in their own interests.

The point I wish to make is that a very large range of meanings of "private" simply do not exist when you are talking about corporations. And, the things that follow from those meanings of "private" likewise have no relevance for corporations.

Briefly, the complete and entire universe of what we refer to when we speak of a natural human's "private life" does not exist in the context of a corporation.

Intelligence, will, agency, reflection, spirit, soul, community, desire, what have you. The ten million aspects of human life that we classify as "private life", and seek to protect from unwanted interference by government in order to preserve our sense of basic human integrity and liberty, *do not exist* in the corporate form.

There is no "private life" to protect. Corporations have no private life whatsoever, they are in their essence public creatures. They exist as an artifice of law.

So, to the degree that people seek to limit the scope of government so as to protect the prerogatives of private human life - which is a goal I profoundly share - those concerns have no relevance whatsoever for corporations.

We generally recognize rights in corporations in order to allow them to carry out the functions for which they are created. They can own property, can engage in contracts. Corporations organized specifically for religious purposes are granted exemptions from certain kinds of regulations based on matters of conscience. Corporations organized specifically for advocacy of issues of public interest can participate in the political process in certain ways.

And so on, and so on.

Those rights are not inherent in corporations, but are granted to them by law. This did not happen all at once, or in the same way for all corporations, but over time, and to address specific purposes and concerns that emerged historically.

I agree that that line has not always been drawn crisply, and IMO the failure to do so is pernicious and has done tremendous damage.

But in discussing this stuff, it is IMO critical to recognize the basic, ground facts - the actual reality - of what we're talking about.

Corporations have no private existence. They can be owned and operated by private individuals, for their own private purposes, but the corporation per se is purely a creature of law.

They have no inherent rights whatsoever, and in fact have no inherent right to even exist. They have only those rights we recognize in them - i.e., grant them by law.

To me that most harmful outcome of the Hobby Lobby decision is the conflation of the rights that belong to the owners of the corporation, with those of the corporation itself. Due to how closely HL is owned, and the unusual consistency of belief among its owners, it presents a kind of edge case, which makes it a convenient example for folks who have a certain point to make.

But Hobby Lobby is not the Greens, is does not and is not capable of holding any "beliefs", and exists to sell crafting supplies full stop. Recognizing "religious belief" in Hobby Lobby is like recognizing religious belief in Robbie the Robot.

It's absurd.

If they don't want to be subject to the laws that govern for-profit corporations, they can do business under another form. There were options available to them other than causing this train wreck.

It would absolutely not be convenient for them to do so, but in my understanding of things it's the obligation of people with unusual burdens of conscience to go the extra mile and make the sacrifices needed to accommodate that, not the obligation of everybody else in the world.

Sebastian mentioned something about the political process being allowed to continue, in a slightly different context, but the political process in this country is stopped dead in its tracks.

By assholes.

Government has been made to stop functioning, purposely and with malign intent, and really the Hobby Lobby case was nothing more than another convenient spaniard thrown into the works, not the result of deeply held corporate religious beliefs, which as Russell has pressed home, is an absurdity on its face.

If you look across the world at the moment, you see conservatives, in the worst, murderous sense of the designation, destroying all political processes -- Putin, ISIS, Hamas, Netanyahu (has a photo op with Putin nor long ago - kindred non-souls, despite Obama giving Israel my money to build its "Iron Dome"), Egypt on all sides, and here at home, something still called the Republican Party, blocking all movement forward, and trying to re-install the miseries of old in perpetuity.

It's the sadism of the desperate, death-loving fundamentalist conservative.

Get rid of this vicious, sadistic brand of conservatism infecting the world, and the rest of us might live in peace for a time.

That was an incredibly thorough and well written post. You also, I feel, made my point better than I had thus far, so thanks for that. The key things I want to call out that are central to my point:

There is also a reasonable, well-recognized sense in which corporations and other forms of businesses are "private".

The point I wish to make is that a very large range of meanings of "private" simply do not exist when you are talking about corporations. And, the things that follow from those meanings of "private" likewise have no relevance for corporations.

I agree with these statements. That's what I was trying to get across with the 'middle ground'.

I agree that that line has not always been drawn crisply, and IMO the failure to do so is pernicious and has done tremendous damage.

That summarizes my problem with our current legal framework.

You and I likely disagree about the extent to which government should regulate corporations. But I think the fact that corporation basically escaped legal definition in the constitution has allowed this pernicious spawning of poorly cobbled together caselaw, frequently decided in edge cases.

Edge cases, like hard cases, make bad laws.

To bring this back to the beginning: This all came up based on Sebastian's original assertion that there is a shift between the public and private spheres.

That still rings true to me, but I'm having difficulty patching together more than a vague sense. I would still be interested to hear him expand on it.

I think my sense of that may be driven by two things:
1) corporations have an increasingly large role in our lives, economy, and society.
2) as the role as increased over time, the ways that they are, and are not, regulated has become increasingly relevant.

HL is an example of this, I suppose. 100 years ago there would have been no contention, because health insurance would not be provided by the employer (or anybody, really).

But health insurance is now part of our society, and we've decided that employers will provide it. We've increased the relevance of business/corporations in our lives (we want them to provide insurance), making to what extent they can or should be regulated an important legal question.

Again decided by courts in an edge case. Which is pernicious, even if I agree with the policy outcome of that particular case (which I do to some extent).

I think a better example of the growing role is in the realm of privacy. There is a substantial legal history limiting, on constitutional ground, what government can acquire from a private individual. But information disclosed to third-parties is not subject to such protections.

Which really was a minor thing, but as those third-parties accumulate increasing amounts of information about more areas of our life, it becomes much more relevant.

In this example, the damaging nature is the increasing role of corporations can be utilized by the government to bypass previously strong constitutional protections.

What the examples share is that there is an increasing role for corporations in our lives, making the poorly structured, adhoc nature of their legal environment more noticeable and more societally damaging.

Anyway, that's what I pulled from Sebastian's assertion, but I'd be curious to see what he was actually thinking of.

As long as we are kicking around the extent to which corporations, especially S Corps, are private vs public, perhaps we should widen the discussion. Where do we put LLCs and LLPs on the public/private divide? Where do we put partnerships?

I realize that this is another gray area. But even assuming that we come to some agreement (here, or as a society) about the extent to which corporations are public or private, that won't be the end of the discussion.

There is no "private life" to protect. Corporations have no private life whatsoever, they are in their essence public creatures. They exist as an artifice of law.

So, to the degree that people seek to limit the scope of government so as to protect the prerogatives of private human life - which is a goal I profoundly share - those concerns have no relevance whatsoever for corporations.

I think the emphasis on 'corporations' is misplaced. It is true that corporations, and other limited liability entities (LLP's, LP's, LLC's and so on) are creatures of statute. However, it is not as if 50 state legislatures all up and decided, out of boredom or what have you, to create limited liability entities and then, in the following years, savvy folk seized upon these creatures of statute to make money or advocate or whatever.

Corporations and other similar entities exist out of demand by private citizens to be able to take some business risks without unlimited personal liability. On balance, we are better for these creatures of statute as most folks employed in the private sector should understand--no limited liability, no capital, no company, no job.

Russell's premise seems to be that private citizens who form a limited liability entity essentially waive their private citizen rights of association, religion, etc if the gov't decides to compel certain behaviors.

Because, as limited liability entities, they no longer retain, or they surrender, the rights accruing to natural persons.

I think this argument has legs for publicly traded entities. Not so for privately owned businesses. I could have set my law firm up as a professional corporation. Instead I went with a limited liability partnership. This was on the advice of my accountant and I could not, to this day, tell you what difference it made in my tax liability. None as far as I can tell since each form of business has its own peculiar, very marginal tax preferences. And none in the sense that my law firm operated in the moral/ethical sphere by my personal values.

The point here is that the vast majority of corporations and other similar entities are one person or family businesses. They are not publicly traded and they reflect the values, or lack of values, of the individuals who own the company.

Some closely held businesses are quite large. They are still closely held. If I follow Russell's thinking, I get this result: if you incorporate, your corporation can be compelled ("regulation" is kind of a euphemism, we are talking about compulsion) to perform morally repugnant acts that, but for your decision to incorporate, you could not be compelled to perform.

I don't get why one is ok and the other is not. Why require Hobby Lobby to either go out of business or convert to unlimited liability of the owners for the acts of their employees so that they can enjoy their First Amendment rights? Further, I don't get the advantages of imposing such a rule. Closely held corporations employ millions of people. That is a good thing. To a large but unmeasurable extent, the businesses represented by these corporations would not exist if the owner had unlimited personal liability for the acts or his/her employees.

More generally, I do agree that treating a corporation as a separate entity for most purposes but as an extension of the owners for limited, owner-friendly purposes is contradictory to a degree. The contradiction is resolved, in my view, by distinguishing between limited third party liability and compelled actions by the corporation that would be off limits if the same were imposed on private citizens. You can have both and there is nothing about one that militates against the other.

Finally, thanks to Seb for a thoughtful and welcome post. I agree in every instance except providing commercial services, and even there, I would afford a limited right to disassociate when there is an identifiable conflict between conscience and the requested service, provided the service itself has identifiable religious significance, such as a wedding. Yes, this can be a cloak for bigotry. So is hounding someone out of a job for not holding the correct views on SSM.

the minutiae of the distinctions between the various corporate and non-corporate forms for businesses is quite above my pay grade, so I'd be highly interested in folks who actually know stuff to weigh in.

that said, my understanding is that the key points in question are:

limited liability - are the owners personally responsible for the debts and risks of the enterprise

flow-through vs non-flow-through tax structure - are the profits of the enterprise considered to belong directly to the owners, or not. there's a tax advantage to the former, as it avoids having the income taxed twice

how many owners are there, and can shares in ownership be purchased by the public

different forms combine these aspects (and others, no doubt) in different ways to suit particular situations.

what all of these things have in common is that an entity is created, separate from the owner(s). the only form of business (to my knowledge, anyway) for which this is not true is sole proprietorship, where is virtually no daylight between business and owner.

the creation of a legal entity for purposes of doing business inherently, IMO, brings us into the public sphere.

I would even go further and say that engaging in business - doing something for a living - brings you into the public sphere, even if just on the basis of sole proprietor, because engaging in an exchange of value with other people involves you in something like a de-facto (or even explicit) contract.

if you sell something that is faulty or other than what you described it to be, the buyer has recourse, even if you are just doing business as a sole proprietor. and, that recourse is implemented in terms of public institutions, laws, and regulations, and so is not a private matter.

my position, personally, on stuff like this is that if you enter into the public sphere, you are subject to the rules of the public sphere. and, that sphere is *inherently* very broad.

Russell's premise seems to be that private citizens who form a limited liability entity essentially waive their private citizen rights of association, religion, etc if the gov't decides to compel certain behaviors.

An excellent reply McK.

First, I think it's dead obvious that private citizens who form a limited liability entity (or any number of corporate or other legal forms) waive many of their private citizen rights of association etc.

The rights that are waived depend on the kind of entity that is formed.

If you start a business, you can't refuse to hire women, minorities, gays, or likely any number of other protected classes of people, just because you don't want to associate with them.

If you incorporate as a religious organization, there are forms of political advocacy which are off limits to you when you act on behalf of that organization, even though that constrains your personal rights of free speech and petition.

I don't think any of this is controversial.

What is controversial in this case, to my eye, is the recognition of the right to free exercise of religion in an entity that has no such inherent right, and which up to now has not been granted that right, because that right is irrelevant to its reason for existence.

What is also clear in this case is that the Greens, personally, have not been required to do anything they object to.

They are not personally cutting checks for birth control. Those funds come from HL, and HL's money and the Green's money are distinct.

Hobby Lobby is not the Greens. The association is closer than is typical, even in most large closely held corps, and the consistency of the personal beliefs of the principal owners of HL also makes it a unique case, but the plain fact is that, for very good reasons, the Greens chose to operate HL as an entity distinct from them.

I'm sure that seems like sophistry, but it is no more of one than Seb's "laundering the responsibility" for odious things through the tax code.

Which, for sure, is something each and every one of us lives with, each and every day.

Russell's premise seems to be that private citizens who form a limited liability entity essentially waive their private citizen rights of association, religion, etc if the gov't decides to compel certain behaviors.

I'm not sure I see that in Russell's posts. But neither do I see how a corporate entity can have a religion to have rights.

If you form a corporation, your are insulated from responsibility both for personal liability and for the religious implications of what the corporation does. You can be insulated from both, or you can be isolated from neither. But you don't get to pick and choose.

We've already hit the point that you may embrace a religion which, quite sincerely, holds that commerce with a particular other religous or racial group is a sin. The government cannot compel you, as an individual, to believe otherwise. But it can and does require a company, even if you own all of it, to not discriminate.

If there is a way to distinguish between religious belief in racial discrimination vs. religious belief in opposing contraception, I am having great difficulty seeing it. (Note: I realize that Hobby was not about opposing all forms of contraception. But that is irrelevant to the issue of whether they get to apply the religious beliefs of the owners to their business practices.) Are some sins, in some religions, something that the law must allow companies to discriminate on the basis of, but other sins are not? And how does one decide, absent a specific Supreme Court ruling on a each specific sin, which is which?

"So is hounding someone out of a job for not holding the correct views on SSM."

I agree with this.

Although I've never heard of a gay wedding planner who has refused a job involving a straight couple. At least not in the movies.

Hounding someone out of a job for not having the correct views on Single Source Multicasting, uh, Surface To Surface Missiles, wait, Single Sex Marriage is not kosher.

But, we have Sebastian's formulation of the housemaid who should not be forced to stay on a job in which he or she disapproves of the adultery happening under her very nose.

But, say, the housemaid disapproves of her previously closeted boss who enters into a SSM and now she, the housemaid, walks around the house looking disgusted and maybe refusing to change the bedsheets, though carrying out her other duties to the full.

Say, he or she, the housemaid, of her own volition, during Spring cleaning tosses the remaining wedding cake stored in the freezer baked by a straight wedding cake maker into the trash and when questioned, says "Whoops?", in Spanish.

But she stays on, cause she needs the income.

I'd say the hounding is about to commence.

Hounding, or firing at will, and what's the difference?

Isn't all firing hounding, and vice versa.

Why can't society, via its duly elected government, fire at will as well?

Not that it should.

Just interested in these provisionally drawn lines in the sand which we call absolute cause we feel like it.

On the other hand, we have hundreds of appointees for federal government positions being held up and hounded mostly for no reason whatsoever but a few because of views they might hold.

Hounding looks to me like an American pastime, especially if, like Kramer might, you keep showing up for a job you've been fired from.

And how does one decide, absent a specific Supreme Court ruling on a each specific sin, which is which?

well, once upon a time, there was a standard.

"To permit this [to allow a person to use a religious motivation as a reason not to obey generally-applicable laws] would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself."

we have Sebastian's formulation of the housemaid who should not be forced to stay on a job in which he or she disapproves of the adultery happening under her very nose.

to further perturb the already muddy waters, I'd say the issue here depends on whether the housemaid is working for herself, or for someone else (i.e., an agency).

if she's working for herself, directly providing a service as a sole proprietor, IMO she can do whatever she wants. if you don't want to clean houses for adulterers, then don't do it. there's no daylight between you and your business - its risks are your risks, its money is your money, its profit is your profit - so there's no daylight between its "rights" and your rights. you are the only legal entity in play, so your rights are the only rights in play.

if you work for a hotel, or a housemaids agency organized under a corporate form, then the housecleaner is not the only entity involved, the housecleaners' personal scruples are not the operative consideration.

even if you're the owner of the agency, because "owner of the agency" is not the same as "the agency", by intent and design.

Russell's premise seems to be that private citizens who form a limited liability entity essentially waive their private citizen rights of association, religion, etc if the gov't decides to compel certain behaviors.

Because, as limited liability entities, they no longer retain, or they surrender, the rights accruing to natural persons.

As russell points out, even if we accept this formulation, we've already broadly accepted that a corporation's rights of association, etc. may be limited in the face of compelling public interest.

However, as he also points out, it's not clear why we must - or even should - accept this formulation, nor the assertion that owners are waiving their rights if the gov't does not recognize the corporation as having religious rights separate from the owners.

It is far from clear as to how an owner loses their right to free exercise by being limited in how they can "exercise" their religious beliefs through the corporate form rather than by personally exercising them. It is far from clear how an individual loses their right to free association by being limited in how they can exercise their right to association through the corporate form rather than exercising them as a private individual.

IOW, it's not clear how they're surrendering their rights by not being permitted to exercise them under the corporate form, but only as private individuals wielding individually-held assets. Yes, it might seem odd that an owner who could perform an act if in business and unincorporated might not be able to do likewise if incorporated, but that's entirely the point of incorporation: you're no longer acting as a private individual, and are not treated as one legally. The owner can't do the hypothetical act, but there are many acts that they cannot do because of incorporation, and likewise acts that cannot be done to them. It's certainly possible to argue that we should only treat owners as artificial statutory entities in very strictly narrowed contexts of liability, and consider them to be private individuals in all other contexts when acting under the aegis of the corporate form, but it's an argument of base pragmatics, not high principles.

And again, all that is quite separate from the fact that we have already conceded that free exercise, etc. is not invalidated by the very fact of strictures supporting compelling public interests.

Russell's premise seems to be that private citizens who form a limited liability entity essentially waive their private citizen rights of association, religion, etc if the gov't decides to compel certain behaviors.

Because, as limited liability entities, they no longer retain, or they surrender, the rights accruing to natural persons.

It would be more accurate to say that: "Russell's premise seems to be that private citizens who form a limited liability entity essentially waive their private citizen rights of association, religion, etc if the gov't decides to compel certain behaviors, while they are acting through that limited liability entity."

The second part is nonsense. The private citizens are not, and have not become limited liability entities. As private citizens they retain all their rights.

Russell's premise seems to be that private citizens who form a limited liability entity essentially waive their private citizen rights of association, religion, etc if the gov't decides to compel certain behaviors, while they are acting through that limited liability entity.

Yes, precisely. Thank you for stating that much more clearly than I was able to do, and in fewer words.

All I would add is that not all rights are necessarily surrendered, and different rights are surrendered in the context of different kinds of corporate organization.

The guiding principle over time has been that rights are recognized in a corporation where they are needed to support the purpose for which the corporation was organized.

McKinneyTexas- I get where you're going, but the acid test is that any theory you come up with has to be compatible with the dismantling of Jim Crow. It has to be kept continuously in mind that we once had a society where businesses could discriminate based on their alleged religious and moral values. It sucked.

If I follow Russell's thinking, I get this result: if you incorporate, your corporation can be compelled to perform morally repugnant acts that, but for your decision to incorporate, you could not be compelled to perform.

We the unwashed and unincorporated do hereby agree to tolerate the reckless and unrestrained greed of the incorporated even though we are compelled to put up with their hiding behind a corporate veil as they commit morally repugnant acts that would land us, as the great unwashed and unincorporated, in jail for lengthy stretches of time.

this is in the areas where the government goes beyond permitting or supporting, and into mandating.

The mandate in question is:

Health insurance products have to cover all forms of birth control approved by the FDA, without requiring a co-pay.

I have no quibble with the Greens' personal religious convictions. I do not question their sincerity, nor do I question their good will, nor do I question their interest in running their business in ways that seem best to them, morally ethically or any other way.

I simply want to point out that the path from that mandate, to any individual member of the Green family being personally complicit in an act that they find wrong, is not particularly direct.

The connection is, at its hypothetical strongest, a paper and money trail, and a fairly attenuated one at that.

I find it hard to imagine any law or regulation, weighing in on any topic that is remotely controversial to somebody somewhere, that will pass a bar that low.

I appreciate - quite a lot, actually - the concern for individual human conscience that is one of the themes in this case.

I just wonder how it's going to be possible for a society as large and diverse as the US to actually function effectively if every personal scruple, of every person, has to be observed and respected, lest they be violated or compromised at anything like the level of indirection involved in the Hobby Lobby case.

Tolerance goes in more directions than one.

There are communities who find the burden of the normal obligations of public life to be simply more than they want to take on. They generally address this by not engaging in those parts of public life that they find objectionable. This usually involves separating themselves to some degree from the broader society, or else willingly taking on to themselves whatever extra burden is required to accommodate their conscience.

Placing additional burdens on other folks is not the usual approach.

Long story short, I don't know how we can possibly extend the level of consideration that we are now extending to the Greens to everyone in the country who has a similar scruple, and still function.

Trust me when I say there are lots and lots and lots of possible cases to consider.

I'm curious to know what the folks who support the HL decision have to say about this.

I find it hard to imagine any law or regulation, weighing in on any topic that is remotely controversial to somebody somewhere, that will pass a bar that low.

To play the devil's advocate, on one topic it's the state that construes complicity in such a manner: terrorism. Under Bush II one could be labelled as a 'material supporter of terrorist/m' and legally per/prosecuted for donations to any organisation at any time that now is accused of being a direct supporter of terrorists and their organisations.

"Russell's premise seems to be that private citizens who form a limited liability entity essentially waive their private citizen rights of association, religion, etc if the gov't decides to compel certain behaviors.

Because, as limited liability entities, they no longer retain, or they surrender, the rights accruing to natural persons."

The first sentence is charmingly disconnected from reality, but the second tops that, with an apparent complaint that artificial 'persons' don't have the rights accruing to 'natural' persons.

Russell: "I simply want to point out that the path from that mandate, to any individual member of the Green family being personally complicit in an act that they find wrong, is not particularly direct."

Please note that the *whole frikkin' controversy* is due to the fact that the Greens incporporated Hobby Lobby as a public stock corporation. From my understanding, if it was a partnership or a non-profit, it'd have been far less of an issue.

The reasons that they did this, of course, were flexibility in doing business (one can sell sock much more fluidly than adding/deleting partners), ease of raising money and a separation of corporate and personal liability. If anybody sues the Greens for the actions of Hobby Lobby, those same lawyers might be arguing that the Greens are totally separate from that corporate entity.

I could be mistaken, but I thought HL was a privately help corporation. Wikipedia says this, and I can't find their stock listed on any exchange.

if she's working for herself, directly providing a service as a sole proprietor, IMO she can do whatever she wants. if you don't want to clean houses for adulterers, then don't do it.

That is not always correct, at least in CA. She is a business and is in theory required to render services without discrimination, except on things that are business related. However, CA has a broader public accommodations law than most, is my understanding.

As you pointed out previously, you can probably come up with a white lie business reason (oh, I am not taking new clients in that area right now) and get away with it.

And a more in depth response, although not as much as I'd like. Russell, this is a fair point:

Long story short, I don't know how we can possibly extend the level of consideration that we are now extending to the Greens to everyone in the country who has a similar scruple, and still function.

Trust me when I say there are lots and lots and lots of possible cases to consider.

I'm curious to know what the folks who support the HL decision have to say about this.

I have a few answers. Mostly I don't buy the society failing to function argument. And yeah, a 'narrow' ruling today snowballs into a broad ruling tomorrow. That's a problem, and a facet of what we were discussing earlier. I think that's why we need to reach some agreement about what the guiding principles are. So the law isn't decided on a case by case basis.

But taking the HL decision out of that context and just considering the accommodation society must make for their views, I'm really not overwhelmed by it.

Access to contraception is important. But its really not that hard to acquire in the US. My spouse and I have lived below the poverty line without insurance coverage for contraception, and still managed to acquire some. In general, its not that expensive, and planned parenthood does a good job of making it accessible to those with more limited resources.

Someone (I think DocSci), at some point, raised the fact that although IUDs are cheap in terms of their lifespan, the one time cost will be difficult to budget for the working poor. I agree, that is a good point. But I don't think that is enough to carry the argument.

The burden on society for allowing HL that exemption is minimal. Most forms of contraception are covered by their plan. They do not employ a particularly large percentage of the workforce. There are no doubt some of their employees that will wish access to the specific forms of contraception not covered by their plan, and in that case it is not, in general, prohibitively expensive.

I have not seen data demonstrating this ruling will have a substantial impact on the access to contraception in this society. If you do have that data, by all means, I think access is important and I would certainly re-evaluate my conclusions in light of new data.

Is there a cost to society? Yes. Is it substantial? I don't see it.

So society is bearing some burden, in order in indulge the Green's scruples. I think its a good thing society does this, even when I disagree with the scruples, as I do in this case.

Conscientious objectors are a good example. Recognizing that some citizens have a deep moral objection to killing, we allow them to not serve if called up by the draft. This is a burden on society, as others will have to go in their place.

In my mind, it is an acceptable one. And in my personal opinion, society is better for respecting that scruple and shouldering the burden.

I would say, to borrow a phrase from NV, that "it's an argument of base pragmatics, not high principles" in my mind. I don't have a lofty concept that demands corporations, which I fully agree are creatures of statute, need rights. But I value living in a society that extends respect for other people's scruples, and see this as a part of that value.

Note, I'm not trying to say you don't respect other peoples scruples, you've made it quite clear you do.

And I think the US demonstrated that with the passage of the RFRA, even though it legalized some drugs for some people. That burdens enforcement, muddies the DEA's job, and potentially leads to increased drug usage in the population (which some people argue is a problem).

The RFRA demonstrates we are willing to burden society in order to allow people their scruples. I have no objection to taking that further, and allowing people to run a corporation in accordance to their scruples.

The base pragmatism comes in here: In my view, individual rights are important to protect, a view that you eloquently have supported.

My concern is this: If there is broad authority for the majority to enforce their will on minority in the public sphere (and there is), and the public sphere is defined as follows:

I would even go further and say that engaging in business - doing something for a living - brings you into the public sphere, even if just on the basis of sole proprietor, because engaging in an exchange of value with other people involves you in something like a de-facto (or even explicit) contract.

there is almost nothing you can't do to a minority, unless that minority lives up in the mountains and grows their own food.

If every interaction they have where money changes hands is subject to regulation outside of constitutional limits that protect individual rights, a majority enforce their scruples on anybody. Or at least anybody that wants to interact with society.

Everybody, except the independently wealthy, must do something for a living. In this formulation, it seems to me individual rights stop at your front door. Perhaps I'm over-interpreting your point, but this seems like a pretty good end-around all individual rights.

You can simply burden any scruple or right you don't like in the public sphere, until they are forced to disengage from the society.

The guiding principle over time has been that rights are recognized in a corporation where they are needed to support the purpose for which the corporation was organized.

Corporations are seldom formed for the purpose of purchasing insurance for their employees. So, if we are going to limit the scope of rights to the scope of purpose, why shouldn't we limit duties accordingly? At a minimum, if duties are to be imposed outside the corporation's purpose, the corporation should at least have the right to contest that imposition. Did the Green's know, when they formed a chain of stores catering to hobbyists, that some years later a regulatory body would impose requirements that violated their conscience?

I realize you think the line between the Greens and their employees is hazy and attenuated. I don't because as an employer myself, I have major issues with underwriting either abortifacients or abortions. I can't limit what my employees do with their money, but I can limit what I do with mine.

Placing additional burdens on other folks is not the usual approach.

The general proposition fails in the specific application. Hobby Lobby, the corporation, is not imposing anything on anyone. Rather, it resisted the imposition of a regulatory fiat.

From a different angle, the BC mandate was never debated publicly, never passed by congress. It isn't a "law", it's a regulation.

Long story short, I don't know how we can possibly extend the level of consideration that we are now extending to the Greens to everyone in the country who has a similar scruple, and still function.

I suspect we'll survive. First, we can mitigate things like this by a more modest exercise of regulatory authority. Second, we can have a sense of perspective. The hot buttons are SSM, birth control, abortifacients and abortion. Beyond those items--and birth control is an outlier--there isn't much that gets people excited, and even less when people aren't told what to do. There was no clamor for universal BC as a mandatory benefit under private health insurance until HHS stuck its oar in the water. Lesson: don't pick unwise fights and don't try to do via bureaucracy what you can't do on a vote with public debate.

Please note that the *whole frikkin' controversy* is due to the fact that the Greens incporporated Hobby Lobby as a public stock corporation.

Actually, it is closely held. And apparently your spell key isn't working. But don't let facts or the English language interfere with your rhetorical flourishes.

Here in our little Commonwealth (God save it!) we have a lovely spat going on over the internal workings of a closely held corporation: the Demoulas Market Basket chain of supermarkets.

Over the last couple of weeks, the (not unionized) employees of this closely-held corporation have been holding massive rallies and staging crippling work stoppages. Their only demand? Re-instatement of the recently ousted CEO!!

The business was founded by the grandfather of two cousins, locally known as Arthur T and Arthur S because (following Greek tradition) they were each named after their mutual grandfather and only their middle names are different. The Arthur T and Arthur S branches of the Demoulas family have been wrangling over control of the company for decades. The Arthur S branch owns 51% of the shares. But Arthur T had been CEO for many years.

To hear Market Basket workers tell it, Arthur T was a great boss: hands-on, generous, approachable. To look at the growth and profitability of the business during his tenure, Arthur T was a great businessman: the chain is up to 71 supermarkets in eastern New England, with higher than average ROI despite offering exceptionally low prices to its millions of customers and much better than average pay and benefits to its 25,000 employees. Nevertheless, as soon as Arthur S managed to get all the shareholders on his side of the family to vote with him, he fired Arthur T.

And the workers -- from cashiers to district managers -- rebelled. About 6,000 of them attended the latest rally. Customers, too, have been demanding the return of "the good Arthur", with 40,000 signatures on one petition to the Board of Directors, and pledges to boycott Market Basket until he returns.

My aged mother is too set in her ways to boycott her local Market Basket (so far). When she and my late father settled in Lowell 45 years ago, they started buying their groceries at the original Demoulas "supermarket" and never stopped. That first store, with its 20-car parking lot in downtown Lowell, is long gone, but it was replaced by a modern Market Basket a few blocks away. When I take my mother shopping there, I take advantage of the opportunity to stock up on non-perishables myself. I particularly like the fact that Market Basket has not (so far) fooled around with the loyalty-card BS. The original Demoulas motto was "More For Your Dollar", and the Market Basket strategy has remained (so far) old-school: just sell good stuff cheap, and screw the marketing gimmicks. Still, I can picture things getting to the point where even my mother starts shopping elsewhere.

How the current generation of Demoulases will resolve their family feud is still up in the air. There are 9 (nine!) shareholders in the corporation, which is about as closely-held as you can get. To hear some people tell it, it's nobody else's business who they hire as CEO or how they choose to run their stores.

But when your workforce amounts to a small city, and your customer base amounts to an average state, your operation is not exactly "private". When you and your cousins sue each other in the courts for 20 years over who owns how much of the "closely-held" stock, you're not exactly asking to be left alone. And when 49% of your stock shares vote on way, 51% the other, it's not obvious that "you" -- "the company" -- have a strong conviction about anything.

Did the Green's know, when they formed a chain of stores catering to hobbyists, that some years later a regulatory body would impose requirements that violated their conscience?

Yet their consciences apparently were totally unviolated by the coverage providing exactly the same options that their suit objected tom back before the government regulation appeared. Which causes one to wonder whether their conscience was more bothered by a (supposed) abortificant, or by there mere fact of government regulation. And since there was no way to make a case that the fact of regulation violated their religion, they seized on what they could find. Or invent.

Your employee can spend her money on "abortifacients"; so can her insurance company. Apparently, you can tolerate the one but not the other, if "you" are a Green-owned corporation.

And you, McKinney, apparently want the rest of us to tolerate such fickleness. Which is your right to want. You can also want respect for that argument, but you'd be nuts to expect it, until the Catholic Caucus on the SCOTUS mandates it.

As for the regulation-vs-statute meme, which is growing tiresome, I don't hear you saying that HHS ignored the statute. Are you in fact saying they did?

there is almost nothing you can't do to a minority, unless that minority lives up in the mountains and grows their own food.

I'll let Russell defend himself here becasue I have to, but this is such a misreading of what he wrote (note, the word "public" is totally excised)that I am constrained from invoking (Kaiser Wilhelm) only by my good and generous nature and my respect for your wife's ability to obtain cheapo birth control devices of some sort By the way, Amanda Marcotte disagrees rather vehemently with you on this matter.

But let us wander down the slippery slope that, I'll admit, may or may not come to pass*. Assume this group fled to the mountains, growing their own food, and decided to come to the local market and sell it. They abhor government regulations. Are they to be constrained by EPA or Food & Drug regulations? What if they religiously object?

Under HL, they would appear to have a solid case. In essence, the Supremes lit precedent on fire, constructed a special case, and bent over backward to "accommodate" a plaintiff in a situation of such overweening tenuousness as to defy a rational analysis of the word "burden". Then they called this a "special case", just to be sure nobody gets any ideas.

And you support this in a context of calling for a "general agreement" as to where we should draw some lines?

It is difficult to give serious consideration to this confused argument.

But if you wish a "general agreement" or a "principle" how's this: If you wish to, as an organized group, participate in society and partake of the advantageous rules granted to your form of group participation, you might want to also abide by the price set forth for that participation.

In the subject instance, as has been pointed out ad nauseum, the "burden" on the Greens is simply inconsequential, and the curtailment of their individual inalienable rights as individuals is exactly zero.

And it's not even their 'effing money.

As a vicious partisan, I applaud the Court's partisanship and heartily look forward to the day when a runaway liberal court appoints a president and embarks on a series of made up from their asses decisions that basically vivisects the conservative movement, because that movement stands in opposition to human freedom.

* When you are a conservative justice, making it up as you go is allowed, so they have alluded to some future "constraint" in this regard, but offer absolutely no guarantees.

Well, Tex, you got in a zinger, I'll admit. Although you might want to consider the ongoing curtailment of the right of choice as a liberal invocation of the slippery slope that has turned out to be correct.

I haven't been following this thread closely (end of term grading) but noticing bobbyp's question, I looked back and am trying to figure out what the invocation of Jim Crow in regards to slippery slopes means.

lj, I guess it is about the flood of tailor-made legislation in GOP controlled states aimed at e.g. the voting rights of potential Dem voters who happen to be to a significant degree minorities. There are also a number of cases directly pandering to nativists that amount to: brown skin=reasonable cause for the police to harass (checking legal status, controlled substances etc.). When some of the loudest proponents are then also on record with blatantly racist statements, some see a return of Jim Crow as a (distant) possibility (at least in some parts of the country).

I'll let Russell defend himself here becasue I have to, but this is such a misreading of what he wrote

Quite possibly. I've misunderstood russell before, and likely will again. I'm quite interested to see what russell has to say. He offers coherent and thoughtful arguments.

If it is a misreading, it is not intentional, nor in bad faith. He asked a question, I tried to answer it. If I misunderstood, I hope he corrects me, so we can continue the conversation.

By the way, Amanda Marcotte disagrees rather vehemently with you on this matter.

Perhaps you could be so kind to elaborate on that statement. Because the link is by Tara Culp-Ressler, not Amanda Marcotte. Additionally, it is focused around "three claims about birth control that simply aren’t true:":

1. Birth control is the same thing as abortion.

Which I didn't say.

2. Birth control should be separated from other types of medical services.

Which I didn't say.

3. It’s easier for the government to pay for people’s birth control so that companies don’t have to.

Which I didn't say.

The linked article did ultimately link to Marcotte. However, again on an issue I did not contend.

You than proceed to deviate further and further from what I said. Including putting quotes around phrases such as "general agreement"...which I didn't say. Perhaps those are scare quotes, and not intended to refer back to a specific comment. But if so, I've missed the point.

It is difficult to give serious consideration to this confused argument.

At least for the racial discrimination based on religious beliefs there is explicit SCOTUS precedent* that this is not covered by exemptions from non-dicrimination law. So on that front the court would have to explicitly overturn precedent with no way to pretend that it does not (as it is usually done). Quite a big hurdle there even for the Scalias.

*iirc even rather recent one (Clinton era), not far enough in the past to get safely ignored. So some of the justices may have even be involved in setting it.

For many cities, however, the prohibitions don’t end with setting up camp. In Virginia Beach, for instance, it is also illegal to beg, or sleep in vehicles anywhere within the city. In a total of 70 cities, including Virginia Beach, it is illegal to lie down or even sit down in public places...

Hi thompson,
If that's the case, I'd be interested (realizing that this is not your contention) to point to any kind of statements of the Hobby Lobby portending a return to Jim Crow laws. This is not to disbelieve, I just haven't noticed them. I think I have seen invocations of Jim Crow in voting, though that seems different in that bobbyp noted the invocation of slippery slopes leading to future situations, whereas an invocation of a slippery slope in this case is to avoid returning to a past that is pretty grim.

My apologies. I recalled reading an article by her laying out the costs of contraception, but could not find it. You'll have to admit though, the article I did find was pretty good, right? Try this one. The simple fact of the matter is this: Contraception is about women's health. The ACA is about expanding health care and reducing healthcare costs. Birth control lowers healthcare costs. Birth control is not "cheap" for the many millions in this country trying to get by at or below the poverty line. I leave it to you to take these premises to their logical conclusion.

You than proceed to deviate further and further from what I said. Including putting quotes around phrases such as "general agreement"...which I didn't say. Perhaps those are scare quotes, and not intended to refer back to a specific comment. But if so, I've missed the point.

Quite possibly true. But then I recall you wrote the following:

"I think that's why we need to reach some agreement about what the guiding principles are. So the law isn't decided on a case by case basis."

You bemoan a "gray area" that is currently decided on an ad hoc case-by-case basis and would like to see an "agreement..about guiding principles". Your words.

Then you turn around and lend your support to perhaps the most egregiously decided ad hoc case in this "area" to come down the pike.

And this is the manner of the release: Every creditor that lendeth ought unto his neighbour shall release it; he shall not exact it of his neighbour, or of his brother; because it is called the Lord’s release.

Of a foreigner thou mayest exact it again: but that which is thine with thy brother thine hand shall release.”

Deuteronomy 15:1

does the Hobby Lobby decision mean people (or corporate people) should be able to cancel any debts older than seven years, if they believe in the Bible ?

I'd be interested (realizing that this is not your contention) to point to any kind of statements of the Hobby Lobby portending a return to Jim Crow laws.

LJ, I'm not sure who you are looking for statements from.

But it is far from clear just where the Court will draw the line on which tenets of religious belief trump Federal law, and which ones do not. It could be that they are only willing to do so with regards to abortion (or supposed abortificants). Or it might include racial discrimination.

The only thing we are (mildly) sure of is that it won't include paying taxes. Although how much of a stretch would it be to say that there are people whose opposition to taxes definitely has religious fervor?

cleek,
The way I read that, believers are required to cancel the debts of others to them. But they are not required to cancel (ignore) their own debts.

So there would be no legal obligation to NOT cancel the debts that are owed to believers. (Unless you want to argue that companies could not do so because they have a fuduciary responsibility to their shareholders....)

As I said, I've not been following the thread too closely, but bobbyp noted that the slippery slope is often invoked by Republican politicians with these themes
falling dominos theory
medicare will inevitably lead to socialism
"man on dog"
"gateway drug"

so I'm assuming that McT is claiming that Democratic politicians invoke slippery slope for the list he makes. Though I'm not limiting it to Politicians, if there is someone who goes on about it, I'd like to know. It's been argued that one of the reasons Cochran got the support of African Americans over McDaniel (whose followers are still complaining about the election, according to my facebook news feed) was that McDaniel and his supporters suggested that they needed to bring poll watchers to assure the integrity of the process, which seems to have gone over like a lead balloon, so that links up to what Hartmut said, but that seems a bit too regional for McT to be citing. Anyway, would just be interested on what prompts McT to make that list.

"Please note that the *whole frikkin' controversy* is due to the fact that the Greens incporporated Hobby Lobby as a public stock corporation.

Actually, it is closely held. And apparently your spell key isn't working. But don't let facts or the English language interfere with your rhetorical flourishes."

Closely held corporations can and do publicly sell their stock. A controlling interest has to be held by five or fewer people. The remainder can be flung to the winds.

The Jim Crow reference isn't a slippery slope argument. There are barriers other than Supreme Court Precedent that will protect us from that again. It is a legal precedent argument. If your theory of how we should divvy up the burden to operate fairly in the market place versus the need for accommodation of private religious values by persons participating in the marketplace yields the wrong answer when applied to identical lawsuits filed during Jim Crow, then it's hard to see your decision as being anything other than results oriented nonsense that isn't sufficient to support an actual, neutral societal rule on the very issue you're purporting to resolve.

The Supreme Court tried to resolve this by claiming that the compelling governmental interest in the Jim Crow cases was the rights of minorities to participate fully in the marketplace, and by asserting that governmental policies prohibiting bigots from discriminating in hiring or in the provision of goods and services were narrowly tailored to that goal. But it isn't hard to see through that argument- why not state the governmental interest as the state's interest in ensuring that minorities had access to jobs, goods, and services? At which point you end up with another Hobby Lobby case.

Your position, based on your above comments, is regrettably even more tenuous.

I'd be happy to see you - or anyone else - parse these distinctions in a way that does NOT give a free pass to bigots.

and

If there is a way to distinguish between religious belief in racial discrimination vs. religious belief in opposing contraception, I am having great difficulty seeing it.

and

I get where you're going, but the acid test is that any theory you come up with has to be compatible with the dismantling of Jim Crow. It has to be kept continuously in mind that we once had a society where businesses could discriminate based on their alleged religious and moral values.

But that was just my guess as to "what the invocation of Jim Crow in regards to slippery slopes means."

thompson notes that the HL ruling doesn't impose an overly large burden on society.

I basically agree. Folks who work for HL who would prefer to have all forms of contraception covered are now required to pay for it themselves, full stop. Not the end of the world.

The way that exemption was created was to recognize religious sentiment, and a right to the free exercise thereof, in for-profit corporations.

There is no particularly bright line for when this does or does not apply, it's a matter of whether the corp is sufficiently closely held, and what exercise of religion is burdened, and how large the burden is, and how compelling the overriding public interest is.

So, at a minimum, four interacting criteria, each of whose definitions are less than crisp, and whose relevance to any given individual case will almost certainly have to be sorted out in court.

Likewise, HL is not the only entity looking for such an exemption. Within days of the HL ruling, a number of other organizations came out of the woodwork, looking for their own special treatment.

Among them was a group of religious organizations who happen also receive federal money for various purposes, and who want an exemption from having to hire gays.

So, a result of somewhat greater consequence than having to buy your own birth control pills.

Don't expect that to be the end of it.

When I ask how a plural society can function in a post-HL context, that is what I'm talking about. How do we address any issue of public interest, without having to litigate every freaking comma, jot, and tittle, ad infinitum.

A regulation that all FDA approved birth control methods be covered by insurance ended up in the SCOTUS. That's what I'm talking about.

It's a great time to be a lawyer.

there is almost nothing you can't do to a minority, unless that minority lives up in the mountains and grows their own food.

There are many things you can't do to a minority.

There are far fewer things you can't require of businesses they operate.

Hobby Lobby is not the Greens. The Greens want that separation for some things, but not for others.

Nice work if you can get it.

So, if we are going to limit the scope of rights to the scope of purpose, why shouldn't we limit duties accordingly?

That's not a bad point. I'd be all for getting employers out of the health insurance business.

If there truly is a public interest in everyone having access to health insurance, then make it a public responsibility.

Medicare for everyone.

Hobby Lobby, the corporation, is not imposing anything on anyone.

Actually, they're imposing the burden of paying for some forms of birth control on their employees.

Big deal, not a big deal, whatever. It's not nothing.

Other folks are being required to accommodate the Green's religious beliefs.

You'll have to admit though, the article I did find was pretty good, right?

As it was not responsive to anything I wrote, not really.

Contraception is about women's health.

Agree.

The ACA is about expanding health care and reducing healthcare costs.

I agree that is the laws intent.

Birth control lowers healthcare costs.

Agree.

Birth control is not "cheap" for the many millions in this country trying to get by at or below the poverty line.

So here is where the rubber meets the road. I'll noticed you quoted me as saying cheap. This was the context:

Someone (I think DocSci), at some point, raised the fact that although IUDs are cheap in terms of their lifespan, the one time cost will be difficult to budget for the working poor. I agree, that is a good point.

So, I think the quotes around cheap are not quite representative of the intent of the statement. As to the substance, I'd agree BC is not cheap for someone living below the poverty line, especially things like IUDs with high upfront costs.

My argument was that BC is generally accessible. I pointed out anecdotally that my wife and I were able to budget for it, even when we were quite poor. I also pointed out the PP does a good job of increasing accessibility of BC to those that can't afford it.

Further, despite that I agree with the overall goal of broadly increasing access to BC, and fully recognize that allowing the Green's their scruples is a burden to society, that burden is mitigated by a few things: They don't employ a particularly large percent of our workforce. Most forms of BC are covered. And the ones that are not covered are in general not prohibitively expensive.

Is it a burden? Yes. Does it suddenly strip BC from society? No.

You've offered some data showing the challenges that some women face in acquiring BC. It's troubling, but does not indicate this ruling dramatically alters those challenges.

Quite possibly true. But then I recall you wrote the following:

Followed by a quote of my words. Which is great, and far better than some words, that might be related to something I said. If you quote me, but its not an actual quote, I have no idea where you are coming from or what part of my comment you are referring too.

"agreement..about guiding principles". Your words.

They sure are! Now I know what you are referring too, and can respond appropriately.

You said:

You bemoan a "gray area" that is currently decided on an ad hoc case-by-case [...] Then you turn around and lend your support to perhaps the most egregiously decided ad hoc case in this "area" to come down the pike.

There are two things going on here, there is how caselaw is evolving on corporate personhood and there is the specific end policy in this specific case. I think I've made my views to both relatively clear. Frex:

Again decided by courts in an edge case. Which is pernicious, even if I agree with the policy outcome of that particular case (which I do to some extent).

I do indeed bemoan the gray area of law that spawns case-by-case decisions. I do recognize that a policy decision I support (allowing the Green's their scruples) can be arrived at in a destructive way (by a SCOTUS decision continuing the adhoc and antidemocratic production of corporate law).

Russell asked a question: I don't know how we can possibly extend the level of consideration that we are now extending to the Greens to everyone in the country who has a similar scruple, and still function.

And I answered it. Including the first paragraph of my response where I again pointed out the problems with our current adhoc method:

And yeah, a 'narrow' ruling today snowballs into a broad ruling tomorrow. That's a problem, and a facet of what we were discussing earlier. I think that's why we need to reach some agreement about what the guiding principles are. So the law isn't decided on a case by case basis.

I think that's why we need to reach some agreement about what the guiding principles are. So the law isn't decided on a case by case basis.

We actually do have an agreement about what the guiding principles are.

Closely held corps.
Sufficiently compelling public interest.
Undue burden on religious expression or practice.
Least burdensome means of achieving the public interest's goal.

All very clearly articulated.

The problem is not agreement on principles, those are fairly simple. The problem is the inherent vagueness of words like "closely", "sufficiently compelling", "undue burden", and "least burdensome".

IMO the vagueness is inherent. The criteria are not amenable to a simple black-letter definition.

With the exception of the "closely held corps" part, all of that stuff actually was in place before the HL decision, for individuals and for corps specifically created for religious purposes, e.g. churches etc.

The innovation in the HL decision was the extension to for-profit corporations.

Sebastian, in his original post, presented the idea that much of the HL mess stemmed from an undesirable extension of the public sphere into the private one.

The "drastic shrinking" of what counts as private dealings.

I would say that the HL decision represents an expansion of the private sphere into the public one.

The private convictions of the Greens are now operative in the context of an entity that is the creation of law and regulation, created to engage specifically in for-profit business, enjoying the very many protections of the law and regulation, and subject to the responsibilities of the same.

Except, as regards responsibilities, for where and when the Greens, personally, find that onerous.

Why is the blurring of the distinction between the Greens and HL limited to whether they will pay for 4 kinds of birth control?

If we can't make a clear distinction between a closely held corp and its owners when it comes to an health insurance regulation, what keeps the distinction crisp when it comes to financial liability, or criminal or civil responsibility for harms caused by corporate operations?

What is the legal or simply logical and rational basis "arms length" extending in one direction, and not the other?

I am sympathetic to the Greens' desire to have nothing to do with things they find objectionable. Almost all of us have some circumstance in life where we face similar conflicts.

But this is just a crappy decision. It creates more problems than it solves.

...dispite that I agree with the overall goal of broadly increasing access to BC, and fully recognize that allowing the Green's their scruples is a burden to society, that burden is mitigated by a few things: They don't employ a particularly large percent of our workforce.

And if the Greens (i.e. Hobby Lobby) were the only ones impacted by the ruling, that might be true. But like all such rulings, the principle will be applied to lots of employers, and so will impact a much larger portion of the workforce. And that's ignoring the potential impact of similar reasoning on laws far removed from birth control.

The (urrent) Supreme Court likes to characterize some of their rulings as "narrow." But all that means is that they are only directly touching on one small bit of the law. It doesn't mean it will only impact the parties to the specific case before them.

And it doesn't mean that it will only be applied to the specific law before them. See, for example, the impact of Windsor on same sex marriage laws at the state level. Windsor was only about the Federal law on providing Federal benefits to those whose same sex marriage was conducted in compliance with their local state law. But the same reasoning is being applied, by courts across the nation, to invalidate state same sex marriage prohibitions. "Narrow" ruling; broad impact.

Could the majority, for example, mandate that every business perform regular drug testing of all employees and report the result?

A good question.

Briefly, I don't think that would fly, because it touches on the employee's right to be free from unreasonable search.

But I understand the point you're making - if the relationship between employer and employee is within my hypothetical "public sphere", why would it be out of bounds? - and the question is a quite good one.

I will take that off and ponder.

The point I hold to on the question in general is that rights that belong to people don't automatically belong to corps. Or, ought not. And that is often lost in the discussion of what HHS is imposing on "the Greens".

The Greens != Hobby Lobby, and the Greens don't want it any other way, mostly.

I can limit what I do with mine.

As another possible point of interest, one of the likely next cases in the upcoming parade of requests for exemption will be the religious organizations that not only don't want to pay for birth control (either selected forms or any at all), but don't want anyone else to pay for it either.

The presumptive "least burdensome" solution that the SCOTUS suggested for Hobby Lobby was for the feds to let them have the same accommodation that is available to religious non-profits - fill out a form (Form 700) telling your insurance company you don't want to pay for birth control, and then the insurance company has to pay it.

It's still cheaper than paying for live births so presumably everybody has an upside.

In the upcoming cases, even that is claimed to be overly burdensome, because the act of informing the insurance company that the insured won't pay for it still, somehow, involves the religious corps in the heinous act of providing birth control.

I'm not completely clear on the mechanics of how that works, but that is the claim.

Possible solutions proposed so far include using some less intrusive means of informing the insurer - perhaps a phone call or FB chat message.

In any case the claim is being taken sufficiently seriously that injunction has been granted to, frex, Wheaton College, to not have to comply with the law as it stands.

It's one thing to say "I won't pay for it". It's another to say "And that guy over there can't pay for it either!".

How far is this going to extend? How many degrees of indirection are required before the most sensitive conscience can declare itself free of guilt?

Where does the money that the insurance company will use (in lieu of the insured) to pay for the birth control come from? Does it fall from the trees?

If the feds pay for it, where does that money come from? Don't the Greens pay taxes?

Why do taxes provide some magic path of absolution from all association with evil, but a health insurance mandate does not?

At what point do all of the other stakeholders involved in these questions get to have their interests respected?

It's not like this is just Big Evil HHS vs the Little Guy. It's also the interests of one set of little guys bumping up against those of another set.

As noted, I'm sympathetic to the Greens dilemna, but tolerance is a two way street. If you want to engage in the public sphere - which HL emphatically does want to do - it behooves you to recognize that there are people operating in that sphere who *aren't like you*, and that there are limits to the extent to which other folks can be expected to accommodate your personal quirks, however sincere they are.